75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 193
A-Engrossed
Senate Bill 274
Ordered by the Senate April 24
Including Senate Amendments dated April 24
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Senate Interim Committee on
Judiciary)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
{ - Requires that in hearing conducted by administrative law
judge assigned from Office of Administrative Hearings,
administrative law judge must issue final order on behalf of
agency. Provides procedure for judicial review of final orders
issued by administrative law judge assigned from office. Allows
agency to appeal final order. - }
{ - Provides that party may request change of administrative
law judge assigned from office upon showing of good cause. - }
{ + Removes authority of Director of Employment Department to
hire chief administrative law judge for Office of Administrative
Hearings. Authorizes Governor to appoint chief administrative law
judge.
Directs Employment Department to provide administrative
services to office.
Directs Attorney General to consult with advisory group of
specified members when adopting model rules of procedure for
contested case hearings conducted by office.
Changes evidentiary standard for modifying finding of
historical fact made by administrative law judge from office. + }
Requires administrative law judge assigned from office to
disclose ex parte communications made by any agency. Eliminates
exemption for duty of disclosure for certain communications from
assistant attorneys general.
{ - Requires that training for administrative law judge
assigned from office not be provided by agency when
administrative law judge is conducting hearing on behalf of
agency and when training relates to matters to be decided in
proceeding. - }
{ + Requires Secretary of State to use administrative law
judge from office.
Declares emergency, effective on passage. + }
A BILL FOR AN ACT
Relating to administrative law judges; creating new provisions;
amending ORS 183.605, 183.610, 183.630, 183.635, 183.650,
183.685 and 183.690; repealing ORS 183.600; and declaring an
emergency.
Be It Enacted by the People of the State of Oregon:
{ +
APPOINTMENT OF CHIEF ADMINISTRATIVE LAW JUDGE + }
SECTION 1. ORS 183.610 is amended to read:
183.610. (1) The { - Director of the Employment
Department - } { + Governor + } shall { - employ - } { +
appoint + } a person to serve as chief administrative law judge
for the Office of Administrative Hearings. The { - director - }
{ + Governor + } shall consider recommendations by the Office
of Administrative Hearings Oversight Committee in
{ - hiring - } { + appointing + } a chief administrative law
judge. The person
{ - employed - } { + appointed + } to serve as chief
administrative law judge must be an active member of the Oregon
State Bar. The chief administrative law judge has all the powers
necessary and convenient to organize and manage the office.
Subject to the State Personnel Relations Law, the chief
administrative law judge shall employ all persons necessary for
the administration of the office, prescribe the duties of those
employees and fix their compensation. The chief administrative
law judge shall serve for a term of four years.
{ - Notwithstanding ORS 236.140, the chief administrative law
judge may be removed during a term only for inefficiency,
incompetence, neglect of duty, malfeasance in office, unfitness
to render effective service or failure to continue to meet the
criteria for appointment. - } { + The chief administrative law
judge serves at the pleasure of the Governor. + }
(2) The chief administrative law judge shall employ
administrative law judges. The chief administrative law judge
shall ensure that administrative law judges employed for the
office receive all training necessary to meet the standards
required under the program created under ORS 183.680.
(3) The chief administrative law judge shall take all actions
necessary to protect and ensure the independence of each
administrative law judge assigned from the office.
SECTION 2. { + The amendments to ORS 183.610 by section 1 of
this 2009 Act do not affect the term of the person currently
serving as the chief administrative law judge on the effective
date of this 2009 Act. Upon the completion of the term of that
person, or the position otherwise becoming vacant before the
completion of the term, the Governor shall appoint a person to
serve as chief administrative law judge under ORS 183.610, as
amended by section 1 of this 2009 Act. + }
SECTION 3. ORS 183.690 is amended to read:
183.690. (1) The Office of Administrative Hearings Oversight
Committee is created. The committee consists of nine members, as
follows:
(a) The President of the Senate and the Speaker of the House of
Representatives shall appoint four legislators to the committee.
Two shall be Senators appointed by the President. Two shall be
Representatives appointed by the Speaker.
(b) The Governor shall appoint two members to the committee.
At least one of the members appointed by the Governor shall be an
active member of the Oregon State Bar with experience in
representing parties who are not agencies in contested case
hearings.
(c) The Attorney General shall appoint two members to the
committee.
(d) The chief administrative law judge for the Office of
Administrative Hearings { - employed under ORS 183.610 - }
shall serve as an ex officio member of the committee. The chief
administrative law judge may cast a vote on a matter before the
committee if the votes of the other members are equally divided
on the matter.
(2) The term of a legislative member of the committee shall be
two years. If a person appointed by the President of the Senate
or by the Speaker of the House ceases to be a Senator or
Representative during the person's term on the committee, the
person may continue to serve as a member of the committee for the
balance of the member's term on the committee. The term of all
other appointed members shall be four years. Appointed members of
the committee may be reappointed. If a vacancy occurs in one of
the appointed positions for any reason during the term of
membership, the official who appointed the member to the vacated
position shall appoint a new member to serve the remainder of the
term. An appointed member of the committee may be removed from
the committee at any time by the official who appointed the
member.
(3)(a) The members of the committee shall select from among
themselves a chairperson and a vice chairperson.
(b) The committee shall meet at such times and places as
determined by the chairperson.
(4) Legislative members shall be entitled to payment of per
diem and expense reimbursement under ORS 171.072, payable from
funds appropriated to the Legislative Assembly.
(5) The committee shall:
(a) Study the operations of the Office of Administrative
Hearings;
(b) Make any recommendations to the Governor and the
Legislative Assembly that the committee deems necessary to
increase the effectiveness, fairness and efficiency of the
operations of the Office of Administrative Hearings;
(c) Make any recommendations for additional legislation
governing the operations of the Office of Administrative
Hearings; and
(d) Conduct such other studies as necessary to accomplish the
purposes of this subsection.
(6) The Employment Department shall provide the committee with
staff, subject to availability of funding for that purpose.
SECTION 4. { + ORS 183.600 is repealed. + }
{ +
EMPLOYMENT DEPARTMENT SERVICES + }
{ +
TO OFFICE OF ADMINISTRATIVE HEARINGS + }
SECTION 5. ORS 183.605 is amended to read:
183.605. (1) The Office of Administrative Hearings is
established { - within the Employment Department - } . The
office shall be managed by the chief administrative law judge
{ - employed - } { + appointed + } under ORS 183.610. The
office shall make administrative law judges available to agencies
under ORS 183.600 to 183.690. Administrative law judges assigned
from the office under ORS 183.600 to 183.690 may:
(a) Conduct contested case proceedings on behalf of agencies in
the manner provided by ORS 183.600 to 183.690;
(b) Perform such other services, as may be requested by an
agency, that are appropriate for the resolution of disputes
arising out of the conduct of agency business; and
(c) Perform such other duties as may be authorized under ORS
183.600 to 183.690.
(2) All persons serving as administrative law judges in the
office must meet the standards and training requirements of ORS
183.680.
{ + (3) The Employment Department shall provide
administrative services to the Office of Administrative Hearings,
including budget services, accounting services, procurement
services, contracting services, human resources services and
information technology services. The services must be provided in
a manner that is consistent with law, rules and state policies.
The Office of Administrative Hearings shall reimburse the
Employment Department for the costs of the services provided. + }
{ +
RULES OF PROCEDURE + }
SECTION 6. ORS 183.630 is amended to read:
183.630. (1) Except as provided in subsection (2) of this
section, all contested case hearings conducted by administrative
law judges assigned from the Office of Administrative Hearings
must be conducted pursuant to the model rules of procedure
prepared by the Attorney General under ORS 183.341 if the hearing
is subject to the procedural requirements for contested case
proceedings.
(2) The Attorney General, after consulting with the chief
administrative law judge, may exempt an agency or a category of
cases from the requirements of subsection (1) of this section.
The exemption may be from all or part of the model rules adopted
by the Attorney General. Any exemption granted under this
subsection must be made in writing.
{ + (3) The Attorney General shall consult with an advisory
group when adopting model rules of procedure for the purpose of
contested case hearings conducted by administrative law judges
assigned from the Office of Administrative Hearings. The advisory
group shall consist of:
(a) The chief administrative law judge;
(b) An officer or employee of a state agency, appointed by the
Governor;
(c) An attorney who practices administrative law, appointed by
the Oregon State Bar;
(d) A deputy or assistant attorney general appointed by the
Attorney General; and
(e) A public member, appointed by the Governor, who is not an
attorney or an officer or employee of a state agency. + }
{ - (3) - } { + (4) + } Except as may be expressly granted
by the agency to an administrative law judge assigned from the
office, or as may be expressly provided for by law, an
administrative law judge conducting a hearing for an agency under
ORS 183.600 to 183.690 may not authorize a party to take a
deposition that is to be paid for by the agency.
{ +
MODIFICATION OF ADMINISTRATIVE LAW JUDGE'S + }
{ +
ORDER BY AGENCY + }
SECTION 7. ORS 183.650 is amended to read:
183.650. (1) In any contested case hearing conducted by an
administrative law judge assigned from the Office of
Administrative Hearings, the administrative law judge shall
prepare and serve on the agency and all parties to the hearing a
form of order, including recommended findings of fact and
conclusions of law. The administrative law judge shall also
prepare and serve a proposed order in the manner provided by ORS
183.464 unless the agency or hearing is exempt from the
requirements of ORS 183.464.
(2) If the administrative law judge assigned from the office
will not enter the final order in a contested case proceeding,
and the agency modifies the form of order issued by the
administrative law judge in any substantial manner, the agency
must identify the modifications and provide an explanation to the
parties to the hearing as to why the agency made the
modifications.
(3) An agency conducting a contested case hearing may modify a
finding of historical fact made by the administrative law judge
assigned from the Office of Administrative Hearings only if the
agency determines that { - the finding of historical fact made
by the administrative law judge is not supported by a
preponderance of the evidence in the record - } { + there is
clear and convincing evidence in the record that the finding was
wrong + }. For the purposes of this section, an administrative
law judge makes a finding of historical fact if the
administrative law judge determines that an event did or did not
occur in the past or that a circumstance or status did or did not
exist either before the hearing or at the time of the hearing.
(4) If a party seeks judicial review of an agency's
modification of a finding of historical fact under subsection (3)
of this section, the court shall make an independent finding of
the fact in dispute by conducting a review de novo of the record
viewed as a whole. If the court decides that the agency erred in
modifying the finding of historical fact made by the
administrative law judge, the court shall remand the matter to
the agency for entry of an order consistent with the court's
judgment.
SECTION 8. { + The amendments to ORS 183.650 by section 7 of
this 2009 Act apply only to hearings for which an administrative
law judge is assigned from the Office of Administrative Hearings
on or after the effective date of this 2009 Act. + }
{ +
EX PARTE COMMUNICATIONS + }
SECTION 9. ORS 183.685 is amended to read:
183.685. (1) An administrative law judge assigned from the
Office of Administrative Hearings who is presiding in a contested
case proceeding and who receives an ex parte communication
described in subsections (3) and (4) of this section shall place
in the record of the pending matter:
(a) The name of each person from whom the administrative law
judge received an ex parte communication;
(b) A copy of any ex parte written communication received by
the administrative law judge;
(c) A copy of any written response to the communication made by
the administrative law judge;
(d) A memorandum reflecting the substance of any ex parte oral
communication made to the administrative law judge; and
(e) A memorandum reflecting the substance of any oral response
made by the administrative law judge to an ex parte oral
communication.
(2) Upon making a record of an ex parte communication under
subsection (1) of this section, an administrative law judge shall
advise the agency and all parties in the proceeding that an ex
parte communication has been made a part of the record. The
administrative law judge shall allow the agency and parties an
opportunity to respond to the ex parte communication.
(3) Except as otherwise provided in this section, the
provisions of this section apply to communications that:
(a) Relate to a legal or factual issue in a contested case
proceeding;
(b) Are made directly or indirectly to an administrative law
judge while the proceeding is pending; and
(c) Are made without notice and opportunity for the agency and
all parties to participate in the communication.
(4) The provisions of this section apply to any ex parte
communication made directly or indirectly to an administrative
law judge, or to any agent of an administrative law judge, by:
(a) A party;
(b) A party's representative or legal adviser;
(c) Any other person who has a direct or indirect interest in
the outcome of the proceeding;
(d) Any other person with personal knowledge of the facts
relevant to the proceeding; or
(e) Any officer, employee or agent of { - the - } { +
an + } agency { - that is using the administrative law judge to
conduct the hearing - } .
(5) The provisions of this section do not apply to:
(a) Communications made to an administrative law judge by other
administrative law judges; { + or + }
(b) Communications made to an administrative law judge by any
person employed by the office to assist the administrative law
judge { - ; or - } { + . + }
{ - (c) Communications made to an administrative law judge by
an assistant attorney general if the communications are made in
response to a request from the administrative law judge and the
assistant attorney general is not advising the agency that is
conducting the hearing. - }
{ +
AGENCIES REQUIRED TO USE ADMINISTRATIVE LAW JUDGES + }
{ +
FROM OFFICE OF ADMINISTRATIVE HEARINGS + }
SECTION 10. ORS 183.635 is amended to read:
183.635. (1) Except as provided in this section, all agencies
must use administrative law judges assigned from the Office of
Administrative Hearings established under ORS 183.605 to conduct
contested case hearings, without regard to whether those hearings
are subject to the procedural requirements for contested case
hearings.
(2) The following agencies need not use administrative law
judges assigned from the office:
(a) Attorney General.
(b) Boards of stewards appointed by the Oregon Racing
Commission.
(c) Bureau of Labor and Industries and the Commissioner of the
Bureau of Labor and Industries.
(d) Department of Corrections.
(e) Department of Education, State Board of Education and
Superintendent of Public Instruction.
(f) Department of Higher Education and institutions of higher
education listed in ORS 352.002.
(g) Department of Human Services for vocational rehabilitation
services cases under 29 U.S.C. 722(c) and disability
determination cases under 42 U.S.C. 405.
(h) Department of Revenue.
(i) Department of State Police.
(j) Employment Appeals Board.
(k) Employment Relations Board.
(L) Energy Facility Siting Council.
(m) Fair Dismissal Appeals Board.
(n) Governor.
(o) Land Conservation and Development Commission.
(p) Land Use Board of Appeals.
(q) Local government boundary commissions created pursuant to
ORS 199.430.
(r) Oregon Youth Authority.
(s) Psychiatric Security Review Board.
(t) Public Utility Commission.
{ - (u) Secretary of State. - }
{ - (v) - } { + (u) + } State Accident Insurance Fund
Corporation.
{ - (w) - } { + (v) + } State Apprenticeship and Training
Council.
{ - (x) - } { + (w) + } State Board of Parole and
Post-Prison Supervision.
{ - (y) - } { + (x) + } State Land Board.
{ - (z) - } { + (y) + } State Treasurer.
{ - (aa) - } { + (z) + } Wage and Hour Commission.
(3) The Workers' Compensation Board is exempt from using
administrative law judges assigned from the office for any
hearing conducted by the board under ORS chapters 147, 654 and
656. Except as specifically provided in this subsection, the
Department of Consumer and Business Services must use
administrative law judges assigned from the office only for
contested cases arising out of the department's powers and duties
under:
(a) ORS chapter 59;
(b) ORS 200.005 to 200.075;
(c) ORS chapter 455;
(d) ORS chapter 674;
(e) ORS chapters 706 to 716;
(f) ORS chapter 717;
(g) ORS chapters 722, 723, 725 and 726; and
(h) ORS chapters 731, 732, 733, 734, 735, 737, 742, 743, 743A,
744, 746, 748 and 750.
(4) Notwithstanding any other provision of law, in any
proceeding in which an agency is required to use an
administrative law judge assigned from the office, an officer or
employee of the agency may not conduct the hearing on behalf of
the agency.
(5) Notwithstanding any other provision of ORS 183.600 to
183.690, an agency is not required to use an administrative law
judge assigned from the office if:
(a) Federal law requires that a different administrative law
judge or hearing officer be used; or
(b) Use of an administrative law judge from the office could
result in a loss of federal funds.
(6) Notwithstanding any other provision of this section, the
Department of Environmental Quality must use administrative law
judges assigned from the office only for contested case hearings
conducted under the provisions of ORS 183.413 to 183.470.
SECTION 11. { + The amendments to ORS 183.635 by section 10 of
this 2009 Act apply to all contested case hearings conducted by
the Secretary of State on or after the effective date of this
2009 Act. + }
{ +
CAPTIONS + }
SECTION 12. { + The unit captions used in this 2009 Act are
provided only for the convenience of the reader and do not become
part of the statutory law of this state or express any
legislative intent in the enactment of this 2009 Act. + }
{ +
EMERGENCY CLAUSE + }
SECTION 13. { + This 2009 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2009 Act takes effect on
its passage. + }
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